Bench Memos

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The Filibuster Debate


I thank Brothers Franck, Whelan, and Levin for their thoughtful consideration of my article.

I should say preliminarily that I have been gratified by the tone of the reaction, particularly from people who disagree. I was braced for a lot of “you sounded pretty sure of yourself when you were making the argument you now tell us was wrong …” I’d certainly have had that coming. But readers on both sides of this have been very gracious.

Matt and Ed, who disagree with me, get to the heart of the matter, and resolve it the way I used to, so I’m loath to rebut. Nonetheless, I think we part company in some important places.

I agree with the principle that constitutional perfectionism is to be avoided. Provisions of law should not be deemed problematic absent realistic–and better yet, actual–instances of abuse. Here, though, we confront a situation in which the abuse of a power is not merely “supposed” (to borrow Chief Justice Marshall’s phrase cited by Matt) but quite real. For me, this detracts from Ed’s observation about my seemingly absurd example. (I note that until 2001, imagining a filibuster of judicial nominees would probably have qualified as an absurd example; now it’s reality.) It also undercuts Matt’s reliance on Marshall.

That said, there is definite appeal in my two colleagues’ suggestion that disputes over whether powers have been abused should be resolved by the political process rather than by holding them ultra vires. Indeed, much of the objection to the purported “organic” constitution (which I think Ed, Matt, and I share) lies in the principle that where the Constitution is silent, democratic solutions are the rule of the road.

Alas, in ways germane to the present question, that is not the world we inhabit–and I don’t see us ever going back to a time that was either pre-Marbury (as I understood it) or pre-Cooper v. Aaron as Ed puts it. (I certainly defer to Ed on that.) I take it as a given that the Supreme Court has the power to strike down a statute as beyond the power of Congress. I take it as a given that the Supreme Court, in particular, has the power to void an act of Congress which attempts to seize the Court’s authority to interpret the law dispositively. In such instances, we do not wait for the political process to work itself out–for the public to rise up and vote the runaway congress out the door. The acts are declared unconstitutional.

In this instance, to the contrary, we are dealing with a constitutional power of the president rather than the court. That should not matter–they are peers and their constitutional powers of equal weight for purposes of this analysis. We are also dealing with a species of regulation–viz., a senate rule–that is plainly inferior to a statute in the deference it merits. Given that the Supreme Court does not hesitate to invalidate a statute as unconstitutional if upholding it would nullify a constitutional power of the court, how can a mere senate rule be permitted to nullify a constitutional power of the president? (Matt and I simply disagree here about whether the filibuster intrudes on the president’s power. The senate has a proper way to check the president’s prerogatives: it can vote “no.” But I believe it has a duty to vote.)

It seems to me that there is an important difference between the pedigree of the Senate’s power to prescribe its own rules and the pedigree of any particular rule prescribed. It is the prescriptive power that is of constitutional dimension. The resulting rules are not. Congress, analogously, has the constitutional power to prescribe rules (laws) for the conduct of interstate commerce. The rules so prescribed are not themselves extensions of the constitution. They are just statutes. If, pursuant to the constitutional power, congress were to prescribe a rule (or statute) that purported to nullify the courts’ power to determine the constitutionality of commerce laws, that rule would be stricken. It would not be saved simply because the power that enabled congress to enact the rule is indisputably enumerated in the constitution. I believe the same principles should hold true in the confrontation between a senate rule and the president’s constitutional power.

Finally, I don’t think Matt’s analogy to recess appointments works. Even if Matt is right that the recess appointment does not today work as it was contemplated, the fact remains that it is explicitly provided for by the Constitution (Art. II, Sec. 2, cl. 3)–we don’t need to derive it from some other express grant. In contrast, the filibuster is not an express power–it must be derived. It does not have the force of constitutional law. And I was not dealing with anything so amorphous as the “spirit of the constitution.” I am talking about the appointments clause–an enumerated power of the executive.


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